Thursday, January 17, 2013

Briefs Filed by Petitioner and His Amici in Bowman v. Monsanto

In Bowman v.
Monsanto, the Supreme Court will have the opportunity to address the extent to
which the doctrine of patent exhaustion applies to progeny of patented
recombinant seeds. For background on the case, see this previous post.

Here are
links to briefs recently filed by petitioner Bowman and his amici, with some
brief commentary:

Petitioner (Vernon Bowman) argues that an authorized sale of recombinant seeds exhausts patent
rights in progeny seeds that were not themselves the subject of an authorized
sale. He bases this argument on a theory that subsequent generations of seeds
are "embodied” in the first-generation authorized seeds.Bowman is apparently attempting to leverage the
Supreme Court's questionable use of the term "embodies" with respect
to method patents in Quanta.He also argues that production of progeny
seeds does not constitute "making" the seeds because the use of
genetically modified seeds inherently results in the production of progeny
seeds. Bowman contends that contract law provides adequate remedies to owners
of patents on self-replicating technologies.

Center for Food Safety argues that extending patent exhaustion to progeny seeds will
benefit farmers by curtailing Monsanto's patent enforcement actions targeting
farmers. The Center also claims that extending the patent exhaustion doctrine
in this way will benefit scientific research and innovation in agriculture, and
lower the cost of farming. The Center further contends the Federal Circuit's
decision is contrary to Quanta, and reiterates petitioner's argument that
producing progeny seed constitutes use of the patented seed, not making it, and
hence falls within the scope of patent exhaustion. The amici voice is concerned
that farmers whose fields have been "contaminated” by Monsanto's patented
seeds could be subject to infringement lawsuits.

The American Antitrust Institute argue that the Federal Circuit's decision is
contrary to Supreme Court precedent, particularly Quanta, and departs from long-standing Congressional patent policy.They warn that the Federal Circuit's decision
"portends dangerous unintended consequences" for other industries,
particularly the computer software industry. They suggest that Monsanto should
learn from the software industry, and engage in "effective product
differentiation and efficient third-degree price discrimination" in order to
counter the threat posed by the ease with which their products can be
replicated. They contend that Monsanto could have avoided its need to rely on
patents by not working with soybean seeds and other inbred seed lines, and
confining their activities to hybrid seeds (i.e., corn) that do not produce
true copies of themselves. Somewhat surprisingly, the Institute suggests that
Monsanto "could have developed its ‘terminator’ gene, which would have
rendered progeny seeds sterile." “Terminator” is a pejorative term for
Genetic Use Restriction Technology (GURT), highly controversial technology that
Monsanto pledged not to use in 1999.

The
Automotive Aftermarket Industry Association et al. are concerned that
affirmance of the Federal Circuit's decision weakens the patent exhaustion doctrine.
This brief was filed on behalf of companies that market automotive replacement
parts and refurbished inkjet cartridges.

Knowledge Ecology International essentially argues that effective patent protection is
not necessary for self-replicating genetically engineered crops, because
"a plethora of alternative mechanisms to patent regimes exist to reward
research and development."For
example, they argue that an inventor "can still protect his investment
through contractual agreements governing post-sale uses” (while at the same
time acknowledging that contract law would not have helped in this case, due to
a lack of privity between Bowman and Monsanto).The plethora of alternative mechanisms includes "sui generis
systems of rewards or cash innovation inducement prizes," which KEI
characterizes as "viable alternatives to the patent system."They voice concern that "even plants
exhibiting the genetically modified trait found in the wild as a result of
cross-pollination, would fall under the patent rights the patent holder.)

The Public Patent Foundation expresses concern that under the Federal Circuit's ruling, "contaminated
farmers are infringers," and "Monsanto's customers routinely make and
sell new infringing articles." In a previous post, I discussed a lawsuit that
the Public Patent Foundation has filed against Monsanto on behalf of a variety
of groups including associations of organic farmers.

33 comments:

Anonymous
said...

For what it's worth, while transgenic hybrids cannot be productively replanted by farmers regardless of legal protection, they can be cannabalized and their transgenic traits sold by competeting companies at a fraction of the R&D time and cost required to create the novel trait in the first place. I don't see how overturning this protection would avoid severly chilling a technology/market that, as it is, is already only profitable for the most massive market traits.

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About Me

I am a law professor at the University of Missouri-Kansas City School of Law. My primary research interests lie at the intersection of biotechnology and intellectual property. This blog provides analysis and commentary on recent developments relevant to this area of the law.